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Foreword

This Guidance is primarily intended for the use of members and clerks in the Scottish Parliament and promoters of, and objectors to, Private Bills although, as a public document, it is available to other Parliament staff and members of the public.

The Guidance aims to inform the reader/user of the procedures and requirements for the processing of a Private Bill through the Parliament. In seeking to achieve this aim, it is intended that the Guidance is as clear, readable and understandable as possible in explaining what at times can be a complex process. The format is, so far as possible, to follow the chronological order of events in the promotion and processing of a Bill. A flowchart has been produced at Annex A to show the broad procedure for a Private Bill from lodging through to Royal Assent.

The Rules that provide the procedural framework for the passage of Private Bills in the Parliament are set out in chapter 9A of the Standing Orders (these are the Parliament’s rules of procedure). Both the Guidance and the Standing Orders can be accessed via the Parliament’s website—

www.scottish.parliament.uk/business/bills/billguidance/gprb-c.htm www.scottish.parliament.uk/business/parliamentaryProcedure/index.htm

Several amendments have been made to the Rules on Private Bills, following recommendations made by the Procedures Committee (1st Report, 2001, SP Paper 316; 3rd Report 2001, SP Paper 347; 5th Report 2001, SP Paper 441; 1st Report 2002, SP Paper 495; and 4th Report 2005, SP Paper 334).

Where substantial changes are made to these Rules, a revised edition of this Guidance will be issued. In the meantime, should you have any comments on Private Bill procedure generally, or this Guidance, these should be sent to—

Private Bills Unit
The Scottish Parliament
Edinburgh
EH99 1SP
Tel: 0131 348 6789
Fax: 0131 348 6467
private.bills@scottish.parliament.uk
www.scottish.parliament.uk/business/bills/privateBills.htm

For information in languages other than English or in alternative formats (for example Braille, large print, audio tape or various computer formats), please send your enquiry to the Public Information Service, The Scottish Parliament, Edinburgh, EH99 1SP. You can also contact that office by fax (on 0131 348 5601) or by email (at sp.info@scottish.parliament.uk). Written correspondence in any language is welcomed.

Private Bills Unit
December 2005

Part One: Private Bills

Definition of a Private Bill

1.1 A Private Bill, according to Rule 9A.1.1 of the Standing Orders of the Scottish Parliament, “is a Bill introduced for the purpose of obtaining for an individual person, body corporate or unincorporated association of persons (“the promoter”) particular powers or benefits in excess of, or in conflict with, the general law, and includes a Bill relating to the estate, property, status or style, or otherwise relating to the personal affairs, of the promoter”. The definition of a Private Bill, therefore, includes what are sometimes known as “personal Bills”.

1.2 Private Bills differ from Public Bills and are subject to substantially different procedures (see Part Five). Although Public Bills may be introduced by a Minister of the Scottish Executive, an individual Member of the Scottish Parliament, or a committee convener, and range from major Bills of Scottish Executive policy to small amending Bills, Budget Bills and Bills to tidy up the statute book, they have in common that they involve only changes to the general law and matters of public policy. As such, they are subject to a process that is entirely parliamentary in character and in which only MSPs, elected to serve the public interest, participate.  Private Bills are different in that they involve measures sought in the private interests of the promoter, and to which others may object, also in a private capacity. The role of the Parliament remains to legislate but, because of the nature of the issues at stake, it is also to arbitrate between competing private interests. That calls for procedures that are both parliamentary and quasi-judicial in character.

Devolution and the limits of legislative competence

1.3 Before the establishment of the Scottish Parliament in 1999, most private legislation affecting Scotland was subject to the procedures established by, and under, the Private Legislation Procedure (Scotland) Act 1936. Other UK private legislation (including some that applied in part to Scotland) was, and still is, subject to the Private Bill Standing Orders of the two Houses of Parliament at Westminster.

1.4 Paragraph 5 of Schedule 8 to the Scotland Act 1998 amended the 1936 Act so that the procedures it provides are no longer available for a Private Bill “wholly within the legislative competence of the Scottish Parliament”. As a result, Private Bills dealing solely with devolved matters can only be introduced into the Scottish Parliament, where they will be subject to the procedures described in Standing Orders and in this Guidance. However, Scottish Private Bills that deal in part with reserved matters (as defined in Schedule 5 to the Scotland Act 1998) must continue to use the 1936 Act system and the General Orders thereunder – that is, they proceed by way of a “draft Provisional Order” subject to confirmation by a Bill introduced in the Westminster Parliament.

1.5 For these reasons, prospective promoters are advised to ensure that everything they seek by way of a Private Bill would be within the Scottish Parliament’s legislative competence before embarking on the process described in this Guidance. They should also be aware that any Private Bill introduced in the Scottish Parliament will be subject to various legislative competence tests during and after its passage through the Parliament. First, it may only be introduced if accompanied by a statement of the Presiding Officer’s view on whether or not the Bill is within the Parliament’s legislative competence (under section 31(2) of the Scotland Act). Secondly, if passed by the Parliament, it could be subject to challenge by the Advocate General, the Lord Advocate or the Attorney General, who have the power (under section 33 of the Act) to prevent it being submitted for Royal Assent until any doubts about legislative competence have been resolved. Finally, even if it is enacted, it may be overturned by the courts on the basis of section 29(1) of the Act, which states that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.

Layout and presentation

1.6 Although the procedures are different, Private Bills in the Scottish Parliament are very similar, in terms of layout, structure and the conventions of legislative drafting, to Public Bills. This is because all Bills that are enacted become Acts of the Scottish Parliament (ASPs), and ASPs are not distinguished, in terms of presentation, according to the type of Bill from which they originate. In particular, private ASPs are numbered in the same single series as public ASPs.¹

1.7 Scottish Private Bills are therefore almost identical in appearance to Scottish Public Bills. The layout of Scottish Bills, although broadly similar to that adopted by both Houses of Parliament at Westminster, is different in a number of respects. In particular, they are printed on a distinctive purple paper. 

1.8 The Standing Orders require Private Bills to be in “proper form” (Rule 9A.1.4). The Presiding Officer has made a determination of “proper form” which, together with recommendations on the content of Bills, is reproduced at Annexes B and C (see also paragraphs 2.7 and 2.8).

1.9 Users of this Guidance who are unaccustomed to dealing with primary legislation may find it useful to familiarise themselves with the information given in Annex C, which explains the structure of Private Bills and certain common features of drafting.

Part Two: Preparations for introduction

2.1 This part of the Guidance covers the procedures prior to a Private Bill being lodged for introduction. It includes the arrangements for notification and advertisement as well as the requirements in respect of accompanying documents to the Bill. The purpose here is to indicate the expectations of a Private Bill Committee (see Part 4)in relation to the above. While not authoritative, following the Guidance should minimise any requests for additional intimation, advertisement or the production of other material that might otherwise delay a Bill’s passage.

2.2 It has been structured to set out what needs to be done and then to provide -details on how it should be done. In following that process some repetition inevitably occurs. The Guidance follows a chronological order of events in preparing for a typical Bill. Where additional documents require to be produced for certain classes of Bills, these are covered towards the end of this Part.

Pre-introduction consultation

2.3 A Private Bill that seeks to authorise the construction or alteration of works specified by the Presiding Officer in Annex K or the compulsory acquisition or use of any lands or buildings, may not be introduced unless the promoter has consulted the mandatory consultees (see Rule 9A.1.4A and B) on the matters specified by the Presiding Officer in his determination at Annex P (for example, on the likely effects of the development on the environment). A full list of the mandatory consultees is contained in Annex P. The determination requires the consultation to be undertaken as early as practicable and in any event at least two months prior to the proposed date of the Bill’s introduction.

2.4 Given that the mandatory consultees must be consulted on (amongst other things) the scope of the environmental statement, in practice, it is anticipated that consultation will happen during the formative stages of the design of the project. This is likely to have a number of advantages and, in particular, the promoter may be better able to properly identify, assess and mitigate the potential impacts of the project on the environment. Meaningful consultation may also make it less likely that the mandatory consultees will object to the Bill. 

2.5 Promoters must also consult more widely on the Bill’s objectives and the alternative ways of meeting them. Guidance on this is given in paragraphs 2.18-2.20 below.

Discussion with the clerks

2.6 Prospective promoters (or their agents) are also invited to make contact with the Private Bills Unit as early as possible. Early discussion will help the clerks there to plan for the impact the proposed Bill may have on the Parliament’s business programme and to advise on the steps that require to be taken in advance of its introduction. The promoter should discuss with the clerks any timetable to which it is working, particularly if there is a target date by which it would like the Bill enacted. Discussion is also welcome on the individual requirements of intimation, advertisement and accompanying documents for each Bill.

Preparation of the Bill

"Proper form" and layout of Bills

2.7 In addition to the determination on “proper form” (see Annex B), the Presiding Officer has made a number of recommendations about the content of Private Bills (see Annex C) and the form in which they should be printed. The aim is to ensure that all Scottish Parliament Bills (and the Acts that they become) conform to standard conventions of layout.

2.8 Promoters are not expected to ensure that their Bills already satisfy these rules at the time they are first submitted. The draftsman of a Bill need only prepare the text of the Bill itself, leaving the layout and presentational aspects to the clerks in the Parliament’s Legislation Team who have access to specially-developed software for the purpose. (For practical and copyright reasons, the software is not available for use directly by outside draftsmen.) Promoters (or their agents) will be given an opportunity to check the formatted version before it is printed.

Guidance to draftsmen of Private Bills

2.9 Before drafting instructions for a Bill are issued, the promoter (or agent) should obtain from the clerks separate guidance setting out the various rules and conventions that apply to the structure and style used in Scottish Parliament Bills. That guidance also gives more detailed instructions about the form in which the text of the Bill and of those accompanying documents for which the promoter is responsible should be submitted to the clerks to be entered into the relevant software.

Preparation of Accompanying Documents

2.10 This part of the Guidance deals with the preparation of the accompanying documents and provides a brief explanation of the function of each document. A determination by the Presiding Officer on the proper form of accompanying documents can be found at Annex D. More detailed information on the individual purpose and requirement of each document is contained in the various determinations made by the Presiding Officer under Rule 9A.2.3(see paragraphs 2.12 and 2.13 for more specific Rule references) which are reproduced in Annex E.

2.11 One of the accompanying documents, the Promoter’s Statement (see paragraphs 2.21-2.41), must contain details of the arrangements made by the promoter to notify and advertise its intention to promote a Private Bill and the distribution of the Bill and accompanying documents. Promoters will wish, in seeking guidance on the requirements for notification and advertisement, to refer to Annex F in order to make these necessary arrangements at this point.
 
2.12 Under Rule 9A.2, every Private Bill must be accompanied on introduction by:

• a statement by the Presiding Officer on legislative competence (Rule 9A.2.2);
• Explanatory Notes (Rule 9A.2.3(a));
• a Promoter’s Memorandum (Rule 9A.2.3(b));
• a Promoter’s Statement (the contents of which vary according to the nature of the Bill) (Rule 9A.2.3(d)); and
• an assignation of copyright/licensing agreement or agreements with the Scottish Parliamentary Corporate Body (Rule 9A.2.3(e)).

2.13 In addition, Bills that seek to authorise the construction or alteration of certain classes of works, or the compulsory acquisition or use of any lands or buildings (that is, Bills to which Rule 9A.1.1A applies), must be accompanied on introduction by––

• an Estimate of Expense and Funding Statement (Rule 9A.2.3(c)(i));
• certain maps, plans, sections and a book of reference (or a statement as to why they are not provided) (Rule 9A.2.3(c)(ii)); and
• an Environmental Statement (Rule 9A.2.3(c)(iii)).

2.14 Of these, all except the Presiding Officer’s statement on legislative competence (see paragraph 1.5) are prepared by the promoter (or agent). The following paragraphs give further details of what each should contain.

Accompanying documents required for every Private Bill

Explanatory Notes

2.15 Explanatory Notes are required in relation to every Bill (Rule 9A.2.3(a)). Their purpose is to summarise objectively and clearly what each provision of the Bill does and to give other information necessary or expedient to explain the effect of the Bill. They should be written in neutral terms and in as clear and as readable a way as possible so as to be comprehensible to people with no legal or specialist knowledge. The Notes should not simply repeat or paraphrase the text of the provisions of the Bill, and no explanation is needed of provisions that are self-explanatory. The Notes on a particular provision might include, for example, background or contextual information, such as reference to relevant statute and common law on which the provision relies, or an explanation of specialised terminology used in the Bill.

Promoter's Memorandum

2.16 A Promoter’s Memorandum is also required in respect of every Bill (Rule 9A.2.3(b)). Its purpose is to explain––

• the policy objectives of the Bill;

• whether alternative ways of achieving these objectives were considered, what these alternatives were and why the approach chosen was adopted; and

• the consultation that was undertaken (including, where appropriate, consultation with the mandatory consultees (see Rule 9A.1.4A and B and Annex P)) on these objectives; the ways of meeting them, and on the detail contained in the Bill together with a summary of the outcome of that consultation.

2.17 Like the Explanatory Notes, the Memorandum should be expressed in as clearly and as readable a way as possible. It is not expected that it should be in the same neutral terms as the Explanatory Notes (see Annex E for guidance on the introductory paragraph).

2.18 The Memorandum should specify in reasonable detail what consultation was undertaken on the proposals in the Bill. Such details might include the means by which consultees were selected, the manner in which they were approached, when the promoter consulted, what it consulted on and with whom, the number of responses received and what, if any, changes to the proposal were made as a result, as well as an outline on what measures it will put in place to maintain contact with affected parties after the Bill is introduced.

2.19 Where the Bill seeks to authorise the construction or alteration of works specified by the Presiding Officer in Annex K or the compulsory acquisition or use of any lands or buildings, the Memorandum should also describe what consultation was carried out under Rule 9A.1.4A and B with the mandatory consultees (see Annex P for a full list of the mandatory consultees). 

2.20 In all cases, it is imperative that the consultation undertaken was meaningful and effective. A comprehensive consultation exercise, involving an open and constructive dialogue with those likely to be affected can provide helpful feedback into the design development process, which can lead to changes being made; help to allay fears and suspicions that can sometimes arise simply from lack of information about what is proposed; and can help to limit objections arising once a Bill is formally introduced.  It is not possible to give definitive guidance about who should be consulted and the kind of consultation that should be undertaken (i.e formal written consultations, public exhibitions and meetings, information leaflets etc).  It will depend to a large extent on size and nature of the project.  It will usually follow that the larger and more contentious a project is, the more extensive the pre-introduction consultation should be.  At the very least, inadequate consultation is likely to result in a greater number of objections and a more drawn out Bill process.

Promoter's Statement

2.21 A Promoter’s Statement is required in relation to every Private Bill (Rule 9A.2.3(d)), although what it must contain varies according to the nature of the Bill. The purpose of the document is to detail all the arrangements made by the promoter with regard to such matters as notification, obtaining any consents that may require to be obtained before introduction, advertising and distribution of the Bill and accompanying documents. Each of these component parts is described in the paragraphs that follow. The Presiding Officer has made determinations on various aspects of what the Promoter’s Statement must include and these determinations are set out in Annexes G, H and I. The determination at Annex D provides guidance on the proper form and layout of the document.

2.22 The first requirement of the Promoter’s Statement applies only to Private Bills that affect heritable property. In relation to such a Bill, the Statement must give details of the notification given by the promoter to certain persons having an interest in the heritable property affected by the Bill (Rule 9A.2.3(d)(i)) (see Annex G).

2.23 There are two steps to the notification process. The promoter must first identify which properties are ‘affected’ by the Bill and second, must establish who has a relevant interest in such property and ensure that all affected persons are duly and properly notified. 

2.24 Affected persons generally fall into two categories—

• those who own or hold an interest in land that may be acquired or used compulsorily; and
• those who may otherwise be affected by the proposed scheme at any stage, be it construction, operation or maintenance.

2.25 The promoter must establish a set of ground rules for identifying the properties that will be affected by the proposed scheme. 

2.26 Properties in the first category should be readily identifiable from the Bill and its associated plans. The promoter must then seek to identify the names of the persons that have an affected interest in those properties and to whom notifications should be sent.

2.27 The ground rules should also cover the criteria applied in identifying properties falling within the second category. A promoter may, for example, take the view that if a property abuts, that is, shares a boundary with the Bill’s limits, then such a person with a relevant interest in that property may be affected by the proposed scheme. Or a promoter may wish to set a distance from the scheme within which properties would be considered to be affected or to visually identify properties that, while not abutting, could still be affected by the scheme. The ground rules must be capable of being applied on an objective basis and each scheme needs to be considered on its own facts.  It is suggested that the promoter err on the side of caution if there is any uncertainty about which properties are affected.

2.28 Promoters are encouraged to make full use of the sources of information listed in Annex G in order to identify the affected persons in both categories upon whom notifications should be served. Affected persons could include owners, tenants, other occupiers and persons having some other heritable interest in land, e.g. holding a real burden or a servitude right. The Land Register and the Register of Sasines are particularly useful sources of information about the identity of those with heritable interests in land, and promoters should consider undertaking a full title search as part of their investigations.

2.29 All notifications should be made by sending a letter by recorded delivery or by delivery in person or, failing which, by leaving it at the person’s normal place of residence, registered office or place of business. Notification should be to the proper officer, clerk or secretary at the business address or, where there is no business address, at their home.

2.30 Details and evidence of delivery of notifications should be retained should any question arise as to whether the information set out in the Promoter’s Statement is correct. A signed acknowledgement of receipt collected at the time of delivery in person, or a receipt for the delivery of any recorded delivery letter, is sufficient for this purpose. Where the promoter has personally delivered the letter either to the person or the property and has been unable to obtain a signed acknowledgement of receipt, evidence of delivery will suffice.

2.31 The function of the notification letter is to inform a person or body who may be affected by the proposed scheme of the promoter’s intention to introduce a Private Bill on, or around, a specific date. In particular, it must inform the person/body of any land or an interest in land that may be acquired or used compulsorily should the scheme proceed. The letter should also state where they can obtain further information about the Bill and the parliamentary process to which it will be subject, how to lodge an objection to the Bill and indicate when the 60-day objection period will commence (see model notification letter at Annex F).

2.32 Regarding notifications, the Promoter’s Statement should—

• explain the ground rules that the promoter has used to determine affected persons;
• explain what sources of information were used to ascertain the identity of all affected persons for notification purposes;
• give details of notifications served on ‘The Owner/Occupier’ rather than on named individuals, and explain why;
• give details of the delivery methods used.

2.33 This will help the Private Bill Committee assess whether the promoter’s approach to notification has been adequate.

2.34 Where the promoter of a Bill is a body corporate, or an unincorporated association of persons, the Statement must contain details of––

• the notification of the Bill by the promoter to the members of that body or association; and
• the consent obtained by the promoter from those members giving authority to promote the Bill (Rule 9A.2.3(d)(ii) and Annex G).

2.35 In particular, the Statement should describe the methods used by the promoter to notify members about the holding of a meeting to discuss this issue and the method used to actually obtain consent (i.e. by vote). Where letters/advertisements were used to notify members about the holding of any such meeting, copies of these should be attached to the Statement. Details of when any such meeting was held; the number or percentage of votes cast in support of the proposal and the text of any resolution or certificate of consent passed following any such vote would also be helpful.

2.36 Where a Bill contains provisions to confer powers upon, or modify the constitution of any body corporate or unincorporated association of persons named in the Bill but not being the promoter, the Statement must also contain details of––

• the notification of the Bill by the promoter to the members of that body or unincorporated association; and
• the consent obtained by the promoter from those members to the conferral of powers or modification of constitution (Rule 9A.2.3(d)(iii) and Annex G).

2.37 In respect of this issue, the Statement must contain the same type of information as is referred to in paragraph 2.35 above about the methods used to notify members and obtain consent. 

2.38 In relation to every Bill, the Statement must include details of the advertisement of the promoter’s intention to introduce the Bill (Rule 9A.2.3(d)(iv)) (see Annex H).

2.39 In relation to every Bill, the Statement must include a list of premises at which it is possible to inspect or purchase––

• those accompanying documents not published by the Parliament (any maps, plans, sections, book of reference, and Environmental Statement); and
• any other documents that are relevant to the Bill but which do not qualify as accompanying documents under Rule 9A.2 (Rule 9A.2.3(d)(v)).

2.40 In addition, it must include an undertaking to send a copy of any documents in either of the above categories to the mandatory consultees and to the premises determined for the purpose of Rule 9A.4.2 by the Presiding Officer (see Annex I).

2.41 The final component that must be included in the Statement is an undertaking to pay the costs that arise in relation to the following matters as set out in the determination of the Scottish Parliamentary Corporate Body (see Annex J)––

• printing and publication of the Bill, accompanying documents and Private Bill Committee reports;
• production, printing and publication of the Official Report of meetings of the Private Bill Committee;
• costs of hiring a suitable venue for the Private Bill Committee when meeting outside the parliamentary estate;
• broadcasting of Private Bill Committee meetings.

Assignation of copyright/licensing agreement or agreements with the Scottish Parliamentary Corporate Body

2.42 Every Bill must be accompanied by an agreement (or agreements) by which the promoter assigns to the SPCB copyright in the Bill and those accompanying documents published by the Parliament, and licenses the SPCB to use or reproduce for the Parliament’s purposes the remaining accompanying documents and other documents submitted to the clerks on introduction or subsequently.

2.43 A model agreement is set out in Annex D. The original copy of the agreement (or agreements) signed by, or on behalf of the promoter, must be lodged with the clerks on introduction. 

Accompanying documents required for certain "works" Bills

2.44 Rule 9A.2.3(c) requires certain additional accompanying documents to be provided but it applies only in relation to Bills to which Rule 9A.1.1A applies. These are Bills that either seek to authorise the—

• construction or alteration of such classes of works as determined by the Presiding Officer; or
• compulsory acquisition or use of any lands or buildings.

2.45 The Presiding Officer’s determination on the classes of works that qualify for the purposes of that Rule is set out in Annex K. The documents are described in paragraphs 2.46-2.48. Where a compulsory acquisition or use of any lands or buildings is sought a model notification letter in place of that referred to in paragraph 2.31 is contained at Annex F.

Estimate of Expense and Funding Statement

2.46 For Bills to which Rule 9A.1.1A applies, the first additional accompanying document required is an Estimate of Expense and Funding Statement. The Presiding Officer has made a determination regarding this (see Annex L). Its purpose is to set out the estimated total cost of the proposed project, giving a detailed breakdown of each element of the project and the sources of funding for the project.  It should also set out best estimates of the timescales over which such costs and funding would be expected to arise and an indication of the margins of uncertainty in any such estimates. Where some of the information required under the determination cannot be provided, a written statement must be provided setting out what information is missing and the reasons for the omission. 

Maps, plans, sections and books of references

2.47 Private Bills to which Rule 9A.1.1A applies must also be accompanied by such maps, plans, sections and book of reference as the Presiding Officer has determined (see Annex M). (The Scottish Parliament is licensed to use Ordnance Survey products.) This determination gives the necessary detail of the content of each document. See also the determinations at Annexes D and E which provide guidance on the proper form and layout of the book of reference. Where any of the documents cannot be provided, a written statement must be provided setting out which documents are missing and the reasons for the omission. The promoter should provide four copies of the maps, plans and section and book of reference. 

2.48 The model notification letter at Annex F(B) states that an extract from the plans is enclosed with the notification letter. The promoter may wish to consider whether any other maps or drawings could be provided that would aid understanding of the precise location of the land intended for acquisition.

Environmental Statement

2.49 A Bill to which Rule 9A.1.1A applies should be accompanied by an Environmental Statement. The Presiding Officer has determined that this should contain all the information currently set out in Schedule 4 to the Environmental Impact Assessment (Scotland) Regulations 1999 (SI 1999/1). In addition to these requirements, the promoter should also provide a summary of the Environmental Statement in clear, non-technical language. The Presiding Officer’s determination in respect of the Environmental Statement can be found at Annex N. The determination at Annex P on consultation with mandatory consultees (e.g. Scottish Natural Heritage, the Scottish Environmental Protection Agency, Historic Scotland) is also pertinent. The promoter should provide ten copies of the Environmental Statement and its summary.

Printing, publication and distribution of Bill and Accompanying Documents

Accompanying documents software

2.50 The clerks have specially-developed templates for formatting some of the accompanying documents required under Rule 9A.2. These templates do not apply to maps, plans, sections, book of reference, Environmental Statement or the assignation of copyright/license agreement. For those that do apply, the promoter must only submit the unformatted text, which the clerks will enter into the software, thus automatically ensuring that these documents conform to the standard conventions of layout and presentation. The templates for accompanying documents also include the pro forma introductory paragraphs of text (see Annex D) and pro forma wording for some of the statements, undertakings and agreements required (in the same form of words as set out in Annex E). The final text of the relevant accompanying documents should be submitted, also unformatted, to the clerks at the same time as the final text of the Bill, for entering into the templates. Promoters (or their agents) will be given an opportunity to check the formatted versions before they are published.

Submission of finalised documents

2.51 The promoter should submit a final text of the Bill itself, together with all necessary accompanying documents, to the Legislation Team clerks at least three weeks before the proposed date of introduction. During this period, the clerks will enter the text of the Bill and the relevant accompanying documents into the appropriate software and check that they conform to the Standing Orders, relevant determinations and this Guidance. At the same time, the Parliament’s legal advisers will prepare advice to the Presiding Officer to inform his statement on legislative competence.

2.52 Every reasonable effort will be made to ensure that the promoter’s proposed introduction date can be met. The promoter (or agent) will be notified as soon as the Presiding Officer has signed a statement on legislative competence. At that point, and assuming that all other pre-introduction requirements have been satisfied, the Bill can be formally introduced. 

Distribution arrangements

2.53 It is for the clerks to distribute the Bill and those accompanying documents published by the Parliament to a list of premises determined by the Presiding Officer (see Annex I) and to the mandatory consultees. At the same time, the promoter should send copies of the remaining accompanying documents to the same premises and to the mandatory consultees (pursuant to the undertaking given as part of the Promoter’s Statement, described above).

Introduction of the Bill

2.54 Under Rule 9A.1.2, a Private Bill can be introduced on any “sitting day”. A sitting day is, under Rule 2.1.3, any day when the office of the Clerk is open but not when the Parliament is in recess or dissolved. The office of the Clerk is normally open on weekdays. The clerks can advise promoters (or agents) of the dates of forthcoming recesses or other days when the office of the Clerk will not be open.

2.55 The Bill is introduced by being lodged with the Clerk (Rule 9A.1.3) and must be signed by, or on behalf of, the promoter. In practice therefore, the signed Bill should be lodged in hard copy (together, preferably, with hard copies of the accompanying documents for which the promoter is responsible), either in person by the promoter (or agent) or by post (recorded delivery or registered post being advisable). These should be the versions agreed with, and formatted by, the clerks.² Following this procedure should ensure that, by the time the Bill is formally introduced, it conforms to the Presiding Officer’s determination on proper form (under Rule 9A.1.4) and the other requirements of introduction set out in Rule 9A.2.

Fees

2.56 At the time the Bill is introduced, the promoter (or agent) must also pay whatever fee for introduction of the Bill has been determined by the SPCB under Rule 9A.1.8. The determination by the SPCB setting out these fees is at Annex J. A certificate in respect of the reduced fee is provided in Annex O.

2.57 The Parliament’s Finance Office will invoice the promoter for the reimbursement of the cost of printing and publishing the Bill and all accompanying documents specified in the determination at Annex J. The costs that a promoter will incur and that are refundable to the Parliament under Rule 9A.2.3(d)(vi) will vary depending upon such factors as the size of the Bill and its accompanying documents, and the number, length and location of the Private Bill Committee’s meetings. 

2.58 Any fees and costs not timeously paid may result in the Bill not proceeding further until payment is made.

Part Three: Lodging of objections

Right to object

3.1 Under Rule 9A.6.1, any person, body corporate or unincorporated association may lodge an objection to a Private Bill that would adversely affect their interests. This may include individuals, amenity bodies and others whose interests may be adversely affected by the proposal.

Discussions with the clerks

3.2 Prospective objectors should have been informed about the Bill, either by way of the newspaper advertisements or directly by the promoter in advance of its introduction and advised to contact the clerks (see Foreword for details) to seek guidance and information on the parliamentary procedures involved and, in particular, the arrangements for lodging an objection. All prospective objectors are advised to follow this advice in order to ensure that their objection is admissible. The clerks can only offer advice on procedural issues and not on the content of an objection. The objection must specify the way in which the objector feels that their interest will be adversely affected by the Bill (Rule 9A.6.1).

Time limit for lodging objections

3.3 Objections should be lodged with the Clerk during the 60 day period following the Bill being introduced. This is referred to as the “objection period” (Rule 9A.6.2). In calculating this period, no account is taken of any period when the office of the Clerk is closed for more than four days. Prospective objectors are advised to consult with the clerks to confirm the date when the objection period ends.

Form of objection

3.5 An objection may be lodged only if it is in ‘proper form’ as determined by the Presiding Officer (Rule 9A.6.4). This is reproduced in Annex Q and states that all objections must—

• be in English;
• be printed, typed or clearly hand-written;
• set out clearly the name, address and, where available, other contact details of the objector (telephone, e-mail and fax); and
• be signed (where applicable by a person duly authorised and showing that person’s position or designation) and dated.

A model layout for an objection is set out in Annex R. A copy of this template can, on request to the Private Bills Unit, be e-mailed to prospective objectors.

Admissibility of objections

3.6 Rule 9A.6.5 sets out the criteria for the admissibility of objections. These are that the objection––

• is in proper form (see paragraph 3.5 and Annex Q);
• sets out clearly the nature of the objection (i.e. why the objector opposes the Bill, for example, acquisition of land, noise and vibration);
• explains whether the objection is to the whole Bill or only to specified provisions (in which case these should be clearly identified i.e. by referring to particular sections or works numbers in the Bill) or to both;
• specifies how the objector’s interests would be adversely affected by the Bill (e.g. because of anticipated loss of earnings, or reduction in property values, adverse impact on employment or business, loss of amenity etc); and
• is accompanied by the lodging fee determined by the Scottish Parliamentary Corporate Body (currently £20.00).

3.7 Although there is no limit on the length of objections, objectors should aim to express themselves in as clear and concise a manner as is consistent with satisfying the above criteria. In addition, objections should, wherever possible––

• normally refer to, rather than quote from, specified parts of the Bill or the accompanying documents;
• only quote from other published sources (e.g. newspapers, court judgements) to the extent necessary (i.e. it is not necessary for copies of the full source to be attached so long as a full citation is provided) although objectors may submit accompanying material to support their objection if they consider it necessary to do so.

Means of lodging objections

3.8 Objections may be lodged either in writing or by e-mail (Rule 9A.6.3). Objections lodged in writing may be delivered in person or by courier or may be posted (recorded delivery or registered post being recommended). The clerks will issue an acknowledgement on receipt. 

3.9 Objections lodged by e-mail must be sent from the objector’s e-mail address. Within seven days of being sent by e-mail, a hard copy of the objection must also be lodged in writing (see paragraph 3.8). The clerks will acknowledge receipt of e-mailed objections by the same route. The fee, however, must be received within the 60 day period allowed for the objection.

3.10 Whether or not an objection is lodged by e-mail, the provision of an electronic copy, while not a requirement, is of great assistance to the clerks in preparing papers for the Committee and is encouraged.

Fees

3.11 An objection is admissible if it is accompanied by the fee established by the SPCB (currently £20.00). This may be paid by cheque, postal order or banker’s draft (payable to ‘The Scottish Parliament’) or in cash (in person only). Objectors must ensure that the required fee is paid at the time their objection is lodged.

Notification by the clerks

3.12 Each objector will be notified by the clerks whether the objection is admissible i.e. whether it complies with the admissibility criteria (Rule 9A.6.6). Following the conclusion of the objection period, the clerks will arrange for publication in the Parliament’s Business Bulletin of a list of the names of objectors who have lodged admissible objections (Rule 9A.6.7).³ Further entries in the Bulletin will be published if the Committee decides to permit out-of-time objections to be lodged (see paragraph 3.4) (Rule 9A.6.7B). 

3.13 Objectors should note that acknowledgement by the clerks that an objection is admissible, and notification in the Business Bulletin, should not be taken as an indication that the objection will be accepted by the Committee at the Preliminary Stage or that the objector will be invited to give evidence to the Committee.

Withdrawal

3.14 An objector may, at any time following the lodging of their objection, withdraw it by notifying the clerks. The objector may, in the first instance, notify the clerks in the Private Bills Unit by telephone of their wish to withdraw their objection but, as with lodging an objection, notice of withdrawal must be given in writing or by e-mail subject to a written confirmation. No reason for withdrawal is required, although the objector may state their reasons if so inclined. The fee paid for lodging the objection will not be refunded on withdrawal.

3.15 To facilitate withdrawals, promoters should enter into dialogue with objectors as soon as practicable after objections have been lodged to discuss in detail the specific concerns of the objector and the ways, if any, in which they could be addressed. Promoters will also wish to consider whether there is any information they can actively provide to objectors as early as possible to address the concerns the objector has, for example, a general guide to the compensation process, site specific plans detailing the works relating to the Bill and site specific noise and vibration survey information.

Change of objector

3.16 Property affected by a Private Bill may change ownership during the Bills process. Where property ownership changes as a result of a straightforward sale, the new owner is entitled to lodge an objection in accordance with the time limits described above, and the Private Bill Committee has discretion to accept objections lodged as late as the first meeting of Consideration Stage. After that date, purchasers of property affected by the Bill have no entitlement to lodge a late objection, and neither can they “adopt” any objection lodged by previous owners. However, the seller of the property may be permitted to maintain their objection if they still have an interest in doing so, for example, if they have agreed with the purchaser to maintain the objection on the purchaser’s behalf. The Committee will treat each situation on its own merits, and objectors and/or prospective purchasers should contact the clerks to discuss what will happen to an objection if the affected property is sold.

Objections to Possible Amendments to the Bill Affecting Third Parties

3.18 It should be noted that prior to the end of Phase 1 of Consideration Stage (see paragraphs 5.21-5.47), a proposal may be made to amend the Bill in such a way that might adversely affect the interests of persons who would not be entitled to object to the Bill as introduced.

3.19 Objections to proposals to amend the Bill shall also be in accordance with the preceding paragraphs, subject to any decisions made by the Committee in this respect, e.g. the time limit for lodging such objections. For more information on objections to proposals for amendments, see paragraphs 5.40-5.47.

Statements in relation to consultation

3.20 Any of the mandatory consultees (see Rule 9A1.4A and B and the determination at Annex P) may, during the objection period, lodge a statement with the Parliament in relation to the consultation undertaken by the promoter (Rule 9A.6A). The statement must be sent to the clerks in the Private Bills Unit who would then refer it to the Private Bill Committee once it is established. Any such statement will not be treated as an objection, but will enable the mandatory consultees to bring to the Committee’s attention their concerns about the adequacy of prior consultation and shortcomings in the accompanying documents (in particular the environmental statement).  The Statement may raise issues that the Committee wish to consider at Preliminary and/or Consideration Stage.

Part Four: Private Bill Committee

Establishment and membership

Establishment of Committee

4.1 The first formal step to be taken following the introduction of a Private Bill is the establishment of a Private Bill Committee. Like other committees of the Parliament, a Private Bill Committee is established by a resolution of the Parliament. Such a resolution results from the Parliament agreeing to a motion in the name of the Parliamentary Bureau (under Rule 6.1.3). The motion should include the name, remit and duration of the Committee. The membership of the Committee may be established in the same or a separate Bureau motion.

4.2 If there are two or more Private Bills in progress at the same time, it is expected that separate Committees will be established for each. There may be occasions, however, when it is appropriate to establish a single Committee to deal with two or more closely-related Private Bills introduced at around the same time. In addition, depending on the number of mandatory and subject committees already established and the number of members serving on one or more of those committees, it may not always be practical for there to be more than one or two Private Bill Committees in operation at any time.

Remit and duration

4.3 The remit of a Private Bill Committee will be to consider and report to the Parliament on the Bill in question. The Rules, guidance and practice applicable to other committees will also apply to Private Bill Committees except to the extent that different provision is made for those Committees in Chapter 9A and described in this Guidance. 

4.4 A Committee will normally be established for the duration of the Bill – that is, until the Bill has received Royal Assent, falls or is withdrawn. In practice, its role will normally be at an end once Consideration Stage is completed, but further meetings of the Committee would be required should the Bill be referred back for further Consideration Stage consideration (see paragraphs 5.63-5.65).

Membership

4.5 Under Rule 9A.5.2, a Private Bill Committee shall have at least three but not more than five members.

4.6 There are various constraints on who can serve as a member of a Private Bill Committee. As with other committees of the Parliament, the Bureau is required (under Rule 6.3.4) to have regard to the balance of political parties within the Parliament and to take into account the qualifications and experience of any member who has expressed an interest in serving on the committee. Given that Private Bills will not normally raise issues of a party-political nature, the proportions of members from the various parties on such a Committee may depart to some extent from the proportions of seats held by those parties in the Parliament. However, no Committee should ever consist only of members from one political party.  In addition, given the small size of each Private Bill Committee, it may be more appropriate to assess conformity with the requirement of party balance by reference to the overall balance of members across various Private Bill Committees over a period of time.

4.7 In addition to these general constraints on membership, the quasi-judicial nature of Private Bill Committees makes it particularly important that the members appointed to it are seen as neutral and impartial.  Accordingly, under Rule 9A.5.3, an MSP may not be appointed to a Committee if—

• his or her principal place of residence is within an area in which works are proposed to be authorised by, or under, the Bill;
• any land or building owned by the member, or in which the member has a right or interest, would be subject to compulsory acquisition, or use, or under the Bill;
• the constituency or region that he or she represents, or any part of it, falls within the area in which works are proposed to be authorised by, or under, the Bill;
• he or she represents a constituency or region that, in the opinion of the Parliamentary Bureau, is particularly affected by the works proposed to be authorised by, or under, the Bill;
• he or she has a financial interest that, in the opinion of the Parliamentary Bureau, directly relates to the promoter or the subject matter of the Bill; or
• he or she has any other interest registered in the Register of Interests of Members of the Scottish Parliament⁴ that, in the opinion of the Parliamentary Bureau, would, or would be likely to, prejudice the ability of the member to participate in the Committee’s proceedings in an impartial manner.

4.8 The function of the Register of Interests is “to provide information about certain financial interests of members which might reasonably be thought by others to influence members’ actions, speeches or votes in the Parliament, or other actions taken in their capacity as members”. In most contexts, the existence of a financial interest requires to be registered and declared in relevant contexts, but does not inhibit the member from participating in the proceedings of the Parliament.

4.9 In relation to a Private Bill Committee, however, the Rules exclude from Committee membership any member with a financial interest that in the Bureau’s opinion directly relates to the promoter or the subject matter of the Private Bill, even if the amounts involved fall below the threshold or mandatory registration (currently £25,000). To ensure that financial interests are known to the Bureau when it is proposing membership of a Private Bill Committee, any member nominated must bring such interests to the attention of Bureau members (Rule 9A.5.4). In addition, the rules exclude from Committee membership any member with a registered interest that (in the Bureau’s opinion) is likely to prejudice his or her ability to consider the Bill impartially. 

4.10 At the first meeting of the Committee that a member attends, he or she shall declare that, in his or her capacity as a member of that Committee, he or she will act impartially and will base decisions solely on the evidence and information provided to the Committee (Rule 9A.5.4A)

4.11 Like other committees, a Private Bill Committee cannot commence consideration of any business or vote with fewer than three members present (Rule 12.2.1).

4.12 The circumstances in which a member of a Private Bill Committee may cease to be a member of it are the same as for other committees – namely, resignation, removal from office by the Parliament on a motion of the Committee, and ceasing to be an MSP (Rule 6.3.5). In such an event, the Bureau may appoint a replacement member. However, if the membership of a Private Bill Committee falls below two, the Bureau is required (under Rule 9A.5.7) to establish a new Committee. 

4.13 If a new Private Bill Committee is established under these circumstances and, at the times of its establishment, the Stage that the Bill was at had not been completed, then the proceedings on it shall recommence at the beginning of that Stage. However, the proceedings may resume at the point during the Stage where the previous Committee left off if—

• the persons referred to in Rule 9A.9.3 (the promoter, those objectors chosen by the Committee as representatives of grouped objections and other objectors identified by the Committee as having interests adversely affected by the Bill) and any other person from whom the Committee has agreed to take evidence, agree; or
• the person, or persons, whose evidence has already been taken give that evidence again (Rule 9A.5.9).

Quorum and attendance at meetings

4.14 Partly because of the small size of these Committees and partly because of the special nature of their proceedings, there is a formal expectation on members to attend all meetings of the Committee (Rule 9A.5.5). Members are permitted to be absent from a meeting only in exceptional circumstances. In particular, members are expected to hear all the evidence presented during the Consideration Stage. The Rules provide that, at Consideration Stage, a member of the Committee may not participate in any consideration of the merits of an objection, or in any further proceedings relevant to that objection, unless—

• all the evidence directly relevant to that objection given orally at Consideration Stage has been given in the presence of the member; or
• with the agreement of the persons who gave any such evidence in the absence of the member, and the promoter, the member has viewed a recording of, or read the Official Report of, the meeting at which the evidence was given (Rule 9A.5.6).

4.15 Unlike the position for other committees, members of a Private Bill Committee may not be represented at meetings by substitutes (Rule 6.3A.3).

4.16 In these circumstances, it is particularly important that any member who will, or may, be unable to attend a particular meeting gives early notice to the clerks. Wherever possible, meetings of a Committee will be arranged at times suitable for the members and the other participants. In addition, if at any time during a meeting circumstances arise that makes it necessary for a member to leave, the meeting is likely to be adjourned for a short time, or closed early. Because of the inconvenience this may cause to non-MSPs involved in the proceedings, members should make every endeavour to ensure that such circumstances do not arise.

Convener and Deputy Convener

4.17 Like other committees, a Private Bill Committee must choose a convener at its first meeting. Before that meeting can be held, however, the Parliament must decide the political party of the convener (or that the convener should be a member who is not a member of a political party). The Parliament’s decision is taken on a motion lodged on behalf of the Parliamentary Bureau (under Rule 12.1.2), likely, in practice, to be the same motion by which the Committee is established.

4.18 Until that choice is made, the meeting is chaired by the oldest member of the Committee who is present at the meeting and agrees to chair the meeting for that purpose (Rule 12.1.6 and 12.1.19). It is expected that the convener will be chosen simply by one (or more than one) member indicating a willingness to stand and the other members indicating their agreement to that member (or one of those members) being the convener. Should there be disagreement, the choice may be made by division.

4.19 The convener holds office for the duration of the Committee unless he or she resigns, is removed from office by a decision taken by an absolute majority of the Committee, or ceases to be a member of the Committee or an MSP. If the convener ceases to hold office, the Committee must choose a successor (Rules 12.1.8 and 12.1.9). In these circumstances, the Bureau may propose a fresh motion specifying the party from which the convener is to be taken.

4.20 The convener’s role is to convene and chair all meetings of the Committee and (with the assistance of the clerks) to ensure that it follows the applicable procedures. The convener can vote in any division, and must exercise a casting vote in the event of a tie.

4.21 If the Parliament decides, on a motion of the Parliamentary Bureau, that a Private Bill Committee is to have a deputy convener, the Committee must choose one of its members to occupy that position though this need not be done at the first meeting. As with the convener, the political party from whose members the deputy convener must be chosen is made by the Parliament, on a motion of the Parliamentary Bureau. The role of the deputy convener is to convene and chair meetings of the Committee in the absence of the convener (although, for the reasons given above, this is unlikely to arise). Where the office of convener is vacant, meetings are convened by the deputy convener and chaired by him or her until a convener is chosen. If both offices are vacant a meeting is convened and chaired by the oldest member until a temporary convener is chosen (under Rule 12.1.15).

Sub-committees and reporters

4.22 Like other committees of the Parliament, Private Bill Committees can, with the agreement of the Parliament on a motion of the Parliamentary Bureau, establish sub-committees or appoint members as ‘reporters’ (Rules 12.5 and 12.6). However, given the presumption in favour of all evidence being heard by all members, it is not expected that Private Bill Committees will seek to use these powers.

Clerks, advisers and other staff

Clerks to the Committee

4.23 Each Committee has one or more clerks. The clerks are members of the staff of the Parliament whose general role is to provide administrative and procedural support to the Parliament as a whole and to its members. The specific role of the clerk to a Committee is to arrange meetings; prepare the agenda, papers and minutes; provide procedural advice to the convener and other members; liaise with the promoter, objectors and witnesses; and draft the Committee’s reports.

4.24 The clerks do not normally speak during public meetings but may, if invited to do so by the convener, in relation to a factual or procedural query. A Committee may not meet without a clerk present.

Parliament legal advisers

4.25 A Committee may have in attendance one or more legal advisers, who are members of the staff of the Parliament and whose general role is to provide the members and clerks with legal advice.

Official reporters and broadcasters

4.26 For every Committee meeting held in public a substantially verbatim report of the proceedings is published (Rules 16.2 and 16.5). Members of the staff of the Official Report attend meetings and sit at the table for the purpose of preparing the report. A broadcast (audio-visual or audio only) is also made of all public Committee proceedings. Members of broadcasting staff are present at meetings to control cameras and to operate microphones. 

Security staff

4.27 Members of the Parliament’s security staff are present during all public meetings. Their role is to assist with public access, maintain order and pass messages to and from members and others. 

Advisers

4.28 Like other committees, Private Bill Committees may seek to appoint advisers to assist them in their work. 

Committee meetings

Time and place of meetings

4.29 It is for the Private Bill Committee to decide when it meets. Most Committees cannot meet at the same time as the Parliament itself is meeting. However, a Committee, while it shall not normally meet, or continue to meet, at a time when a meeting of the Parliament is in progress (within the meaning of Rule 12.3.3A), it may do so if—

• it is necessary for it to do so at that time;
• where reasonably practicable, the prior approval of the Parliamentary Bureau has been obtained; and
• the business being considered at the meeting of the Parliament is business other than Stage 3, Final Stage or Reconsideration Stage of a Bill (Rule 9A.5.4B).

A Private Bill Committee may not meet, or continue to meet, when Stage 2 of a Public Bill is being taken by a Committee of the Whole Parliament (Rule 9A.5.4C).

4.30 In practice, however, the deadlines for completion of business set by the Parliament, by competing priorities for accommodation and other resources, and by the other commitments of members are all factors in arranging dates and times of Private Bill Committee meetings. Notice of these meetings is given in the Business Bulletin. Committee members and others invited or expected to attend will be notified directly by the clerks.

4.31 Committees may, subject to the approval of the Parliamentary Bureau, meet anywhere in Scotland.  In deciding where to meet (particularly when taking evidence during Consideration Stage), Committees are expected to take into account the strength of local feeling in the area affected by the Bill. As a matter of courtesy, the Committee should inform the relevant constituency and list MSPs and Westminster MP if it is meeting anywhere other than at Holyrood.

4.32 In addition to the formal meetings of the Committee, members may wish to undertake familiarisation visits to the site of any works envisaged in the Bill. Any such visits might be accompanied by the parties although, if accompanied, members of the Committee would not be able to listen to any representations on the merits of the case.

Public and private meetings

4.33 Like other committees, Private Bill Committees normally meet in public (Rule 12.3.4).  Any committee may meet in private if it so decides, but it may not do so when considering legislation except where, for the purpose of taking evidence, it decides that it is appropriate that a meeting, or part of a meeting, should be held in private (Rule 12.3.5). It follows that a Private Bill Committee, whose remit is limited to the consideration of legislation, can meet in private only to hear evidence that it considers cannot appropriately be heard in public. This might arise in relation to evidence of a commercially sensitive nature, for example. In addition, like other committees, Private Bill Committees may decide to meet in private to consider any draft report.

4.34 Decisions to hold a meeting, or part of a meeting, in private should if possible be taken at a previous meeting of the Committee. This helps to make clear in advance to members of the public who might wish to attend that they will not be able to do so.

4.35 Committee proceedings held in private are not reported in the Official Reportunless the Parliament has decided otherwise, and are not broadcast (Rule 16.5.2).

Attendance by non-Committee members

4.36 Any MSP who is not a member of the Committee may attend any public meeting it holds.  However, non-Committee members are not entitled to participate in the proceedings of a Private Bill Committee during the Preliminary or Consideration Stages (Rules 9A.8.7 and 9A.9.9).  In this context, “participation in the proceedings” includes questioning of witnesses (see paragraph 4.37) and discussion of the Bill, as well as moving amendments (see paragraph 8.5) and voting. In respect of participation, Private Bill Committees differ from other committees of the Parliament.

Conduct during meetings

4.37 As in other committees, the convener chairs meetings of the Committee, and other members speak only at the invitation of the convener. Members speak from their seats and should speak through the convener at all times, unless addressing questions directly to witnesses. Members should not interrupt each other, though they may accept interventions (Rules 7.2.1 and 7.2.4 and 7.8). Witnesses should address their remarks through the chair, except during direct cross-examination of other witnesses. Other witnesses should respect the authority of the convener at all times.

4.38 The convener may limit the time available for a particular item on the agenda.  He or she may also determine the order of speakers and limit the time available to any member to speak. The convener has similar general powers to maintain order in the Committee as the Presiding Officer has in the Chamber. In particular, he or she may order a member or any other person present to stop speaking if they have exceeded the time allotted to them, or if they are departing from the subject or repeating themselves (Rules 7.2.2 and 7.2.3 and 7.8).

4.39 In Committee meetings, members address each other in the same manner as in the Parliament, that is, by name (and title if they wish). The convener and deputy convener may be referred to as such.

4.40 All participants in the proceedings must conduct themselves in a courteous, orderly and respectful manner, and must respect the authority of the convener at all times. In particular, they must not behave in a manner that would constitute a criminal offence or contempt of court (Rules 7.3.2 and 7.8).

Matters sub judice

4.41 Under Rule 7.5, members may not make reference to any matter in relation to which legal proceedings are active (for the purposes of section 2 of the Contempt of Court Act 1981), except to the extent permitted by the Presiding Officer. However, under Rule 7.5.4, nothing “shall prevent the Parliament from legislating about any matter”. In practice this means that the restriction does not apply in relation to proceedings on a Bill. Nevertheless, members should avoid making reference to matters that are sub judice even during such proceedings unless they consider it necessary and appropriate to do so. If in doubt, they should, where possible, raise the matter with the clerks in advance.

Language

4.42 All committees normally conduct their business in English (Rule 7.1). However, if a member wishes to address a Private Bill Committee in Scots Gaelic, or in any other language, he or she may do so with the agreement of the convener. A promoter, objector, witness, or any other person invited to speak by the Committee may also address it in a language other than English with the permission of the convener. Permission should be sought at least two weeks in advance to allow translation or interpretation facilities to be made available.

Part Five: Stages of the Bill

The three-Stage process

5.1 All Private Bills will be subject to a three Stage process.  These are––

• Preliminary Stage
• Consideration Stage
• Final Stage 

A separate Reconsideration Stage is also possible in certain circumstances (see paragraphs 5.69-5.76).

Preliminary Stage

5.2 This Stage begins once the Bill has been printed and a Private Bill Committee established. The Parliamentary Bureau then refers the Bill to the Committee (Rule 9A.8.1). The Committee’s role is to produce a report on whether to recommend to the Parliament that—

• the general principles of the Bill should be agreed to; and
• the Bill should proceed as a Private Bill.

5.3 In addition, the Committee is required to give preliminary consideration to any objections and to give full consideration to any objections to the whole Bill (in the context of the consideration of the general principles of the Bill).

Consideration of general principles

5.4 In considering the general principles of the Bill, the Committee should consider the Bill “in the round” without focusing unduly on points of detail that are more properly a matter for Consideration Stage. Although it is not required to take oral evidence at this Stage, the Committee is likely to offer the promoter an opportunity to explain what the Bill does and why it is considered necessary. The Explanatory Notes and the Promoter’s Memorandum will also assist in these respects.

5.5 If the Committee has substantial doubts at this Stage about the Bill’s general principles, and is considering recommending that they be disagreed to, it should give the promoter an opportunity to respond to such doubts.

Consideration of whether the Bill should proceed as a Private Bill

5.6 The second main issue for the Committee to address in its Preliminary Stage report is whether the Bill should proceed as a Private Bill. This in turn involves the Committee satisfying itself on two points: first, that the Bill conforms to the definition of a Private Bill set out in Rule 9A.1.1, and secondly that the Bill’s accompanying documents conform to Rule 9A.2.3 and are adequate to allow proper scrutiny of the Bill (Rule 9A.8.3). 

5.7 On the first of these points, the Committee should establish the identity of the promoter, for example, to satisfy itself that a promoter who is an unincorporated association of persons has been properly constituted as such.  It should also establish whether the Bill involves obtaining for the promoter “powers or benefits in excess of or in conflict with the general law”.  A Bill should not proceed as a Private Bill if a statutory remedy is not necessary to achieve the result sought; nor should it proceed if the result sought would more appropriately be achieved by means of changes to the general, public law (i.e. by a Public rather than a Private Bill) that would give the same powers or benefits to others in a similar position, without the need to single out the promoter.

5.8 On the second point, the Committee should establish that each accompanying document meets the requirements set out in the relevant paragraph of Rule 9A.2.3, and that it does so in a way that is suitable for the intended purpose. For example, the Committee should consider whether the Explanatory Notes give sufficient information to explain the effect of the provisions of the Bill; and whether the Promoter’s Statement provides sufficient information about advertisement of the promoter’s intention to introduce the Bill.

5.9 If the Committee takes the view that the accompanying documents do not meet the requirements of Rule 9A.2.3, or are not adequate to allow for proper scrutiny of the Bill, it will not normally decide to recommend that the Bill should not proceed as a Private Bill without first offering the promoter an opportunity to provide supplementary accompanying documents (Rule 9A.8.4). It is for the Committee to specify what further documents it requires and to set a reasonable timescale within which they must be provided. Under Rule 9A.8.5, supplementary accompanying documents must satisfy the same requirements of form as apply to the original accompanying documents. The clerks will make similar arrangements for the publication and distribution of supplementary accompanying documents as were made for the original accompanying documents (Rule 9A.8.6).

Consideration of objections

5.10 The third main role of the Committee at Preliminary Stage is to give preliminary consideration to any objections lodged, and to give full consideration to any objections to the whole Bill.

5.11 It is not the Committee’s role at this Stage to decide the admissibility of objections: that is settled at the time they are lodged (see paragraph 3.6).  Preliminary consideration is limited to the Committee satisfying itself that each objection is based on a reasonable claim that the objector’s interests would be adversely affected by the Bill. If the Committee is not satisfied on that point, it may reject the objection (Rule 9A.8.2). The Committee may (but need not) offer an objector an opportunity to be heard at a meeting of the Committee before deciding whether to reject their objection.

5.12 As regards objections to specified provisions of the Bill, this is not the time to consider the substance of such objections (that is for Consideration Stage). However for those objections (or part of objections) that relate to the whole Bill, the Committee will first give preliminary consideration to such objections and, if satisfied that the objections are based on a reasonable claim, then give detailed consideration to them in the context of its consideration of the general principles of the Bill. The Committee’s approach to the handling of such objections (in terms of selection and grouping of objections and evidence gathering) will replicate the process by which objections to specified provisions are dealt with at Consideration Stage.

5.13 If an objection relates to the whole Bill as well as to specified provisions, that part of the objection regarding the whole Bill will be dealt with at the Preliminary Stage, but the remainder of the objection would be allowed to continue to the Consideration Stage.

5.14 If an objection is rejected at the Preliminary Stage, the objector will be informed of the Committee’s decision by the clerks. The fee paid for lodging the objection will not be refunded in these circumstances. The Parliament’s procedures do not provide for a right of appeal against such a decision although the decisions of the Parliament and its committees may be subject to review by the courts.

Preliminary Stage Report

5.15 Once the Committee has completed consideration of the above issues, it will prepare a report to the Parliament. The report is published in hard copy and made available on the Parliament’s website.

5.16 The report will contain a recommendation to the Parliament on whether the general principles of the Bill should be agreed to and whether the Bill should proceed as a Private Bill. It will also set out the result of the Committee’s preliminary consideration of objections and list any objections rejected (under Rule 9A.8.2) on the ground that the objector’s interests are not clearly adversely affected. The report will also include the Committee’s decisions with regard to any objections against the whole Bill. If the Committee upholds an objection against the whole Bill, the Committee will recommend to the Parliament that the general principles of the Bill not be agreed to.

Preliminary Stage Debate

5.17 After the Preliminary Stage Report has been published, the Parliamentary Bureau will recommend, in a Business Motion, a time in the Parliament’s Business Programme for a Preliminary Stage debate. If the Business Motion is agreed to, the agreed Business Programme is advertised in Section B of the Business Bulletin.

5.18 The Preliminary Stage debate takes place on a motion, lodged in the name of the convener of the Committee, reflecting the recommendations of the report. The procedural possibilities depend on the form of the motion.

5.19 One possible motion is “That the Parliament agrees to the general principles of the [title] Bill and that the Bill should proceed as a Private Bill”. If a motion in that form is agreed to by the Parliament (whether on a division or otherwise), the Bill proceeds to Consideration Stage. If such a motion is not agreed to, the Bill falls (Rule 9A.8.10).

5.20 Alternative forms of motion may be used where the Committee either did not recommend that the general principles be agreed to, or that the Bill should proceed as a Private Bill, or both. (For example, “That the Parliament does not agree to the general principles of the [title] Bill and does not agree that the Bill should proceed as a Private Bill”).  If any such motion in that form is agreed to (whether on a division or otherwise), the Bill falls. If any such motion is not agreed to, the Bill also falls. The Bill could only proceed to Consideration Stage on the basis of such a motion if the motion was first amended. The necessary amendment (in relation to the motion given as an example above) would be to leave out “does not agree to the general principles of the [title] Bill and does not agree” and insert “despite the recommendation of the [name] Committee, agrees to the general principles of the [title] Bill and agrees”. Any MSP may lodge such an amendment, which is subject (like all amendments to motions) to selection by the Presiding Officer (under Rule 8.5.6).

Consideration Stage – Phase 1 (Evidence)

5.21 If the Bill is approved by the Parliament at the Preliminary Stage debate, it is then for the Private Bill Committee to take Consideration Stage (Rule 9A.9.1).

5.22 The overall purpose of Consideration Stage is to consider the detail of the Bill. Within that, there are two distinct phases, distinguished by the style of proceedings.  The first involves the Committee meeting in a quasi-judicial capacity to hear evidence on the Bill and on objections to it; the second involves it meeting in a legislative capacity to consider and dispose of any amendments (some of which may have arisen out of objections that the Committee upholds).

5.23 The role of the Private Bill Committee at Phase 1 is to act as arbiter between the promoter and objectors and to report its decisions to Parliament. This involves allowing differences between the parties to be resolved by negotiation but also, where that is not possible, choosing between them. Before it can do so, the Committee must ensure that each party has had a fair opportunity to present its own case and question the opposing case. This may involve the leading of evidence and the cross-examination of witnesses and their evidence.

5.24 It is worth considering factors that determine the length of phase one of Consideration Stage. For example, the number of outstanding issues arising from objections and the complexity of these issues is one factor. However, overarching this is the number of objections that actually proceed to oral evidence at Consideration Stage ie those objections on which a satisfactory agreement has not been reached. That is why promoters and objectors are encouraged to enter into early dialogue to seek resolution of objections whenever and wherever possible.

Selection and grouping of objections

5.25 At the beginning of the first phase of Consideration Stage, the Committee must agree from whom to invite evidence, and whether to invite oral evidence, written evidence or both. 

5.26 The Committee has only limited discretion about whom to invite. Under Rule 9A.9.3(a), it must invite the promoter. With objectors, the Committee should first group objections that it considers to be the same or similar. From each group, the Committee must then select one or more objectors to co-ordinate evidence (whether oral or written) on behalf of that group (Rule 9A.9.4).  For the purpose of grouping, objections will normally be treated as similar only if they give similar reasons in opposition to similar aspects of the Bill. This ensures that all legitimate arguments are considered, while avoiding unnecessary repetition.  

5.27 Of the remaining objections i.e. those the Committee cannot (or chooses not to) group, it must invite every objector whose interests would (in the Committee’s opinion) be adversely affected by the Bill to give evidence. This power of the Committee at Consideration Stage to decide not to invite evidence from certain objectors is separate from its power at Preliminary Stage to reject objections on similar grounds. Only objectors whose interests are (in the Committee’s opinion) clearly not adversely affected by the Bill may be rejected outright at Preliminary Stage.

Timetabling

5.28 A timetable will normally be prepared for the hearing of evidence.  Depending upon circumstances this will normally be prepared in one of the following ways––

• the clerks may draft a timetable following informal discussions with the promoter and objectors;
• the Committee members may wish to meet parties informally before agreeing a timetable; or
• the Committee may wish to discuss and agree a timetable at its first evidence-taking meeting.

5.29 Where possible, discussions on timetabling will take place at least two weeks in advance of the commencement of the taking of evidence. This will allow the Committee to provide those witnesses whom it invites to give oral evidence with adequate notice. Where the Committee intends to meet outwith Edinburgh to take evidence, it may be necessary for it to finalise the list of oral witnesses at the beginning of the first such meeting. In that event some witnesses may be required to be on stand-by to give their evidence. Any such witnesses will be given as much advance notice as possible.

5.30 Prior to any meeting to discuss timetabling the promoter and objectors will be expected to provide in writing the following details of any witness they would wish to support their position––

• name and position;
• summary of their evidence;
• the expected time required to give their evidence; and
• availability to attend.

5.31 Such information should ideally be available seven days in advance of the timetabling discussions to allow copies to be given to other parties.

Written evidence

5.32 In some instances written evidence will be invited and a timescale for this to be received will be set. Written evidence should wherever possible be succinct, concise, focussed and as non-technical as possible and set out in numbered paragraphs. Clerks will be able to provide a template for the submission of written evidence. The electronic submission of evidence is encouraged as this eases distribution and speeds up the evidence gathering process. It is not necessary for written evidence to repeat material already available to the Committee in the accompanying or others documents.

5.33 All written evidence submitted must relate to the original objections. It may not raise, for example, any unrelated new issues not raised in the relevant original objections. The evidence should clearly state those issues upon which there is no disagreement between the objectors and promoter. Any evidence that does not relate to issues in the original objection will not be considered by the Committee.

5.34 Objectors are encouraged to include within their evidence details of amendments they would like to see made to the Bill.

5.35 To ensure fairness to all, written evidence submitted will be published in electronic and paper form, as part of a public paper at the meeting at which it is considered, in partner libraries, and as part of the Committee’s report. If, exceptionally, an objector has grounds for not wishing their written evidence to be published, then this must be indicated. The Committee will then consider any such requests.

Legal representation

5.36 If the Committee decides that an objector (or a representative of objectors that the Committee has grouped) should be invited to give oral evidence, it is a matter for the promoter and each objector to decide whether or not to employ legal representation (counsel, a solicitor, or Parliamentary Agent) to appear for them in the proceedings before the Committee. There is no obligation to employ legal representation and parties may represent themselves. It is expected that each party that chooses to employ legal representation will bear the costs of so doing. Parties may of course reach alternative arrangements if they so wish, but that is not a matter for the Parliament.

Order of proceedings

5.37 It is for the convener of the Committee to call witnesses to speak and to determine the overall order of proceedings. However it is expected that the Committee will first hear from the promoter, followed by questioning of the promoter by Committee members themselves and cross-examination by objectors in whatever order the Committee determines. It will then be for objectors to present their evidence (in the agreed order), each objector being subject to questioning by the Committee and cross-examination by the promoter. The parties will be expected to have regard to the overall timetable to which the Committee is working (and on which they would have been consulted). Oral evidence should focus on matters that remain in dispute between the parties.

Additional evidence and witnesses

5.38 If, during the Consideration Stage evidence-taking, one of the parties wishes to introduce additional written evidence or propose that an additional witness be heard, a formal request should be made via the clerks. It is always for the Committee itself to decide what evidence is taken and which witnesses are heard.

Consideration Stage Report

5.39 Once the first phase of Consideration Stage – the hearing of evidence – has been completed the Committee will prepare a report giving its decisions on the objections considered with reasons where appropriate. Such a report may also indicate areas where the Committee expects the Bill to be amended during the second phase of Consideration Stage.

Possible amendments to the Bill affecting third parties

5.40 Prior to the end of phase 1 of Consideration Stage, a proposal may be made to amend the Bill in such a way that might adversely affect the interests of new prospective objectors (that is, persons whose interests are not affected by the Bill as introduced, and so would not have been able to object to it, but who would be able to object to the Bill if it was amended as proposed), or that might adversely affect the interests of existing objectors in new ways (for example, giving them new grounds of objection). Such a proposal could either originate with the Committee or with the promoter, and might be based on arguments made by objectors or on other considerations.  

5.41 If the proposal originates with the Committee then the promoter will be expected to respond to this proposal, indicating whether it is willing to put in place the arrangements necessary for a new objection process to take place.

5.42 Should the promoter indicate unwillingness to accept the Committee’s proposal, the Committee may recommend to the Parliament that the Bill not be passed at Final Stage. However, the final decision as to whether the Bill be passed is a matter for the whole Parliament.

5.43 It is important to note that, where the Committee agrees to consider such a proposal, it is not stating that it definitely wishes the Bill to be amended in line with the proposal (even if the proposal originates with the Committee rather than the promoter), merely that it considers there to be merit in further exploring the detail of the Bill. It would be inappropriate for the Committee to decide whether to amend the Bill before it had given those who might be adversely affected by the amendment an equivalent opportunity to object to it as was given prior to introduction of the Bill to those who might be adversely affected by the Bill itself. It may be that objections will be lodged to the amendment that are more persuasive than the arguments in favour of the amendment, the point being that the Committee needs to be aware of the considerations on both sides before it can decide.

5.44 It will be for the Committee to agree with the promoter what material will be needed to inform prospective objectors of what the proposed amendment would involve. This may involve the preparation of draft amendments to the Bill and drafts of revised or supplementary accompanying documents (that is, drafts of how the accompanying documents to the Bill would need to be revised or supplemented if the amendments were agreed to).

5.45 The process of notification and advertisement should be equivalent to the original process undertaken before introduction of the Bill, to ensure that new prospective objectors have the same rights as the original prospective objectors. The new objection period should also normally be 60 days. However, in circumstances where the Committee is satisfied that potential new objectors will not be hindered in the exercise of their right to object then it may specify an objection period of less than 60 days.

5.46 Following the end of the objection period, the Committee will give preliminary consideration to the objections as well as considering the draft revised or supplementary accompanying documents on the same basis as was the case at Preliminary Stage. 

Consideration Stage – Phase 2 (Amendments)

Consideration Stage amendments

5.48 Once the first phase of Consideration Stage – the hearing of evidence – has been completed, there must be an interval of at least five sitting days before the Private Bill Committee begins phase 2 – formal proceedings on amendments (Rule 9A.9.7).  During this interval, members of the Committee may lodge amendments to the Bill. The Committee will encourage the promoter to prepare amendments to give effect to any recommendations contained in its Consideration Stage Report. The clerks can distribute these for members of the Committee to lodge and subsequently consider during phase 2.

Order of consideration

5.50 Under Rule 9A.9.6, the Private Bill Committee may decide the order in which the sections and schedules of the Bill are to be taken.  It need only make a formal decision about the order of consideration if it wishes to depart from the default order prescribed by the Rule, which is to take the sections in the order they appear in the Bill and each schedule immediately after the section that introduces it. If the Committee proposes to depart from that order, the clerks will inform the promoter (and the promoter may wish to propose, via the clerks, an appropriate order to the Committee).

Recording decisions on amendments

5.52 It is not expected that the Private Bill Committee will normally prepare any report to the Parliament at this stage of the process. However, it is open to the Committee to prepare a report explaining why particular amendments were made or drawing the Parliament’s attention to provisions of the Bill where, although it could not agree on any particular amendments, it agrees that some amendment is required.

The Bill as amended

5.53 If any amendment (however small) is agreed to, the Bill must be re-printed in amended form (Rule 9A.9.10). If substantial amendments are made (particularly the insertion of new sections or schedules) the promoter will be expected to provide revised or supplementary Explanatory Notes. The re-printing of a Bill is recorded in the Business Bulletin.

Final Stage

5.54 Final Stage takes place at a meeting of the Parliament (Rule 9A.10.1). If the Bill has been amended at Consideration Stage, there must be nine whole sitting days between the last day at that Stage and the day on which Final Stage takes place (or begins) (Rule 9A.7.3A).

Amendments at Final Stage

5.55 Amendments for Final Stage may be lodged as soon as the Consideration Stage is completed (Rule 9A.10.3). Where the Bill was amended at Consideration Stage, Final Stage amendments must relate to the “As Amended” print of the Bill. Where amendments are submitted before that print is ready, the clerks will accept them only on a provisional basis and print them when the page and line references have been checked against the printed version of the amended Bill.

Order of consideration

5.56 Rule 9A.10.5 requires amendments at Final Stage to be taken by reference to the order of the sections and schedules in the Bill, unless the Parliament agrees to a Parliamentary Bureau motion to the contrary. If the promoter takes the view that Final Stage consideration should follow any order other than that laid down by the Rule, it may suggest that order to the clerks. If there is to be a Parliamentary Bureau motion, it should if possible be taken by the Parliament as early as possible before Final Stage, so that the Final Stage Marshalled List reflects that order.

Selection of amendments

5.57 All amendments that are admissible under Rule 9A.12.5 will be printed in the Business Bulletin; but if the Presiding Officer exercises his power of selection under Rule 9A.10.4, not all of the admissible amendments lodged will appear in the Final Stage Marshalled List. The clerks prepare a draft Marshalled List containing all the amendments lodged and put this to the Presiding Officer not later than the day before the Final Stage is to be taken, together with a covering note recommending which amendments are selected (see Part 7 for how these recommendations are arrived at). The final Marshalled List is then prepared and sent for printing.

Proceedings on amendments

5.58 Final Stage proceedings on amendments are similar to those at Consideration Stage, except that all MSPs may vote.

Adjournment to a later day

5.59 If the Bill is amended at Final Stage, the convener of the Committee may move, after the last amendment is disposed of, “That further Final Stage consideration of the [short title] Bill be adjourned to [date]/a later day” (the motion may, but need not, name a day). This motion may be moved without notice and cannot be amended or debated, so the question is put on it straight away. If the motion is agreed to, no further proceedings take place on the Bill until the day named in the motion (or until the Bureau has appointed a “later day”). In the interim, the convener of the Committee may lodge further amendments, but only for the purpose of “clarifying uncertainties” or “giving effect to commitments given at the earlier proceedings at the Final Stage” (Rule 9A.10.5).

5.60 These categories of permissible additional amendments correspond to the two possible reasons the Convener may have for moving to adjourn to a later day. The first reason is to give the promoter an opportunity to consider the implications of any significant Final Stage amendments that have been agreed to. Changes made to the Bill by an amendment on which the promoter has not been consulted may require some correction, and further changes elsewhere in the Bill may also be necessary before the Bill is, once again, fit to be enacted. 

5.61 The second reason for moving to adjourn Final Stage proceedings is to allow commitments given on behalf of the promoter to be met. A promoter who wishes to make such commitments should write to the Convener of the Private Bill Committee (via the clerks). The Convener, in making the commitment during the Final Stage proceedings, should clearly indicate that he or she is speaking on behalf of the promoter. If the Final Stage proceedings are then adjourned, amendments will only be accepted as being to give effect to commitments given if they are consistent with what the Convener is recorded as saying on the promoter’s behalf. 

5.62 Amendments lodged in either of the above categories for the resumed Final Stage proceedings will normally be printed in the Convener’s name followed by “(on behalf of the promoter)”.

Re-commitment

5.63 It may be that adjourning Final Stage consideration is not sufficient to resolve outstanding difficulties with the Bill. It may become apparent, in other words, that although there is still general support for the Bill, the limited scope for further Final Stage amendments does not allow the necessary changes to be made.  In that case, the convener in charge may move “That the [short title] Bill be re-committed for further Consideration Stage consideration in respect of [specified sections and/or schedules]”, under Rule 9A.10.6. 

5.64 If such a motion is agreed to, the Bureau will refer the Bill (or the provisions mentioned in the motion) back to the Private Bill Committee. Proceedings on re-commitment follow the same rules as for the original Consideration Stage. 

5.65 If the Bill is amended during the further Consideration Stage proceedings, it is reprinted as amended and four sitting days must elapse between the day those proceedings end and the day on which Final Stage resumes. If the Bill is not amended, there is no such minimum interval before the Final Stage proceedings may resume (Rule 9A.7.3B). In either case, Final Stage amendments may again be lodged, but only to those sections and schedules specified in the motion to re-commit or to other parts of the Bill (including the long title) if they are necessary in consequence of amendments made on re-commitment.

Debate and vote on whether the Bill be passed

5.66 After proceedings on amendments at the Final Stage are concluded (including any adjourned proceedings under Rule 9A.10.5, and any further Final Stage proceedings after re-commitment), the Parliament must decide whether to pass the Bill. The convener of the Committee moves “that the [short title] Bill be passed” (the motion having been lodged in advance of Final Stage), and a general debate on the Bill may take place. 

5.67 Note that the convener will always lodge and move a motion in these terms, even if the Committee recommended at the Preliminary Stage that the Parliament should not agree to the general principles of the Bill or that the Bill should not proceed as a Private Bill.  Because the Committee’s role is, in practice, over by this point in the process, the convener is no longer required to represent its views. Instead, for the purposes of the Final Stage debate, the convener’s role is to ensure that a decision is taken either to pass the Bill or not. In moving the motion, therefore, the convener is not acting on the promoter’s behalf and so is not expected, in his or her speech, to advocate or defend the Bill as